Exclusive Distribution Agreement Held to be an Offer For Sale

THE MEDICINES CO. v. HOSPIRA, INC., Appeal No. 14-1469 (Fed. Cir. Feb. 6, 2018).  Before Dyk, Wallach, and Hughes.  Appealed from D. Del. (Judge Andrews).  (§102(b) On-Sale Bar)


This case is on appeal following remand from the en banc Federal Circuit in The Medicines Co. v. Hospira, Inc., 827 F.3d 1363 (Fed. Cir. 2016).  In the previous en banc appeal, it was found that a contract for manufacturing services only is not sufficient to trigger the on-sale bar under §102(b).  At issue in the present appeal is whether a distribution agreement between The Medicines Co. (“MedCo”) and its distributor (ICS) is sufficient to trigger the on-sale bar.

The district court found that the distribution agreement was only an agreement for ICS to be a distributor of MedCo’s product, and was not an offer to sell the product.  Thus, there was no offer to sell that would trigger the on-sale bar.


Did the district court err in holding that the distribution agreement was not an offer for sale?  (continue reading)

Summary by:  Jason French